A High Court judge has warned of ‘draconian’ costs penalties should two parties in litigation continue to refuse to cooperate.
The Honourable Mr Justice Fraser said both sides in Bates & Ors v Post Office Ltd had rebuffed efforts to manage the case in a cost-effective and efficient way.
At a case management conference, Fraser outlined poor behaviour exhibited so far in a case in which 500 mostly sub-postmasters are pursuing action against the Post Office branch operator. The claimant group is seeking damages related to the introduction of the Horizon electronic system around 17 years ago, which allegedly caused financial distress and in some cases bankruptcy.
The first claim was issued in April 2016. Fraser listed some of the issues already reported during the group litigation:
- Failing to respond to directions for two months
- Failing to even consider e-disclosure questionnaires
- Failing to lodge required documents with the court
- Refusing to disclose obviously relevant documents
- Threatening ‘pointless’ interlocutory skirmishes.
The judge said: ‘Such behaviour simply does not begin to qualify as either cost-effective, efficient, or being in accordance with the over-riding objective. A fundamental change of attitude by the legal advisers involved in this group litigation is required. A failure to heed this warning will result in draconian costs orders.’
The court heard last month of considerable difficulty in trying to establish a timetable for the litigation. At the case management conference, the claimants sought a substantive hearing for October 2018, while the defendants argued the case could be managed for another entire year without any substantive hearing being fixed. Under this proposal, the hearing would not happen until at least 2019.
Fraser noted that to describe this approach as ‘leisurely, dilatory and unacceptable in the modern judicial system would be a considerable understatement’.
The day after trial was ordered for November 2018, leading counsel for the defendant wrote to ask that it be moved as he already had a commitment at the Companies Court. But the judge suggested it was a ‘clear case of the tail wagging the dog’ if clerks were allowed to dictate hearing dates, and he said there was reasonable notice to arrange for a replacement counsel.
Fraser added: ‘Fixing hearings in this group litigation around the diaries of busy counsel, rather than their fixing their diaries around this case, is in my judgment fundamentally the wrong approach.’